Mediation In Civil Court Proceedings in England and Wales
Introduction
This Guide outlines mediation (in England and Wales) in general terms. The intention of this guide is not to advise you on whether or not to opt for mediation, as this will depend on the circumstances of your case. No guide can ever set out all the factors relating to a particular case. THIS GUIDE IS NOT THEREFORE A SUBSTITUTE FOR DETAILED ADVICE ON YOUR CASE. If you would like further explanation of any points in this guide, please contact us.
WHAT IS MEDIATION?
Mediation is a process by which a neutral third party helps people involved in disputes to find a resolution that is acceptable to all parties. It requires the consent of all parties involved and can take place at any stage of a dispute; both prior to any Court proceedings, and during Court proceedings.
Mediation can, therefore, be a useful alternative to litigation. Even once Court proceedings have begun, the Civil Courts encourage parties to give consideration to alternative forms of dispute resolution at all stages. It is increasingly common for the Courts to impose a stay on civil proceedings to enable the parties to attempt to mediate. Some County Courts have their own mediation schemes for both civil and family disputes (see below for further details).
HOW DOES MEDIATION WORK?
Objectives
Mediation is a flexible process and, unlike trials and Court hearings, is intended to be as non-confrontational as possible. Mediations are held at a time and place which is convenient to, and agreed by all the parties, and can take any length of time. However, most mediations last for one day or less.
The main objective of mediation is for the mediator to facilitate a settlement which is acceptable to all those involved. Unlike a judge, a mediator does not decide the case and will look at a broader range of issues surrounding the dispute – often there are non-legal reasons why a particular dispute has escalated and which are of particular importance to the parties. Addressing those issues can sometimes enable the parties to find some common ground, or view the matter from a commercial perspective.
Format
Mediations take place in private and are entirely confidential. The mediator encourages the parties to talk openly about their positions and motivations about the case, but should emphasise to the parties that any information they give to the mediator will remain confidential unless he or she is expressly authorised to pass the information to the other party.
The format of mediations is flexible. It is common for the parties to have an initial meeting together with the mediator, and then split into separate rooms while the mediator goes between them. However, there may be circumstances where a joint opening meeting is not appropriate, particularly where there is a great deal of antipathy between the parties.
The mediator
The role of the mediator is to be strictly impartial. The mediator has no interest in the outcome of the mediation and will not decide the merits of the case, or offer the parties advice. A mediator does not act as a judge, and cannot impose a settlement on the parties. The mediator's job is to help the parties to identify what they wish to achieve, explore with them the strengths and weaknesses of their case, assist them in considering possible solutions (which are not always financial) and, in a successful mediation, help them agree terms of settlement.
Involvement of the Courts
All mediations are 'without prejudice' to any on-going or subsequent Court proceedings. This means that, if a mediation is unsuccessful and the matter proceeds to a trial, the trial judge will not be told of the outcome of the mediation. The parties are also not permitted to raise at trial any disclosures or admissions made during the course of a mediation.
However, the Courts play an active role in encouraging the parties to mediate. If the Court considers that a losing party has refused to mediate unreasonably, this refusal can be brought to the attention of the judge at the end of the trial in relation to the level of costs that that party should pay, and they can be ordered to pay an increased level of costs. Therefore, if a judge suggests that a claim is suitable for mediation, the parties should give serious consideration to the consequences of ignoring that recommendation.
A number of Courts have introduced their own mediation schemes where the services of a trained mediator are made available to the parties for a fixed period of time and for a fixed cost. The parties are often sent details of the schemes at the Allocation stage of proceedings (after a Defence to the claim has been filed) and are encouraged to attend. There have been cases where parties who have refused mediation have been summoned to attend before a judge to explain their reasons.
As an alternative to Court based mediations, the parties can arrange a mediation privately and it is likely to be more appropriate to complex disputes as the time available for Court based mediation is generally limited. There are a number of organisations which offer the services of experienced trained mediators. If you would like further details of organisations providing mediation services, please contact us.
WHY SHOULD I MEDIATE?
Mediation can be appropriate and of benefit in a wide range of situations. Some of the main advantages are:-
- Cost
Compared to the costs of pursuing a claim to trial, mediation can often be a cost-effective matter of resolving disputes. The fees of the mediator are usually split between the parties, who each pay for their own legal representatives. - Preserving relationships
The mediation process is less confrontational and adversarial than Court proceedings. It can allow parties to preserve a commercial and/or personal relationship. A successful mediation is more likely to mean that both parties will feel that they have benefited from the experience and to allow continued business between them. . - Time
A mediation can be held at any stage of a dispute prior to judgment being given and can therefore allow matters to be resolved much more quickly than through litigation. Most Court cases take a least a year to come to trial and many take longer. - Flexibility
Mediation can give you the opportunity to express your views on all circumstances of the case and explore broader and commercial solutions which would not be possible in a Court room environment. However, if you are seeking to establish a legal precedent, or to obtain a judgment, then mediation may not be the best solution for you. - Confidentiality
Unlike Court proceedings, mediations and any settlements agreed as a result of a mediation are not a matter of public record. This means that the parties are more likely to be able to avoid adverse publicity.
WHEN SHOULD I MEDIATE?
There is no ideal time to mediate. The process can be used at all stages of a dispute and can help to prevent a dispute escalating in the initial stages, or to enable the parties to avoid a trial during litigation. The main requirement is that both the parties approach the mediation with an open mind, and with the desire to reach a satisfactory conclusion.
If you are unsure as to whether to, or when to mediate, please contact your legal representative.
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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